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More Mmmmmediation

There have been a number of comments on my previous posts about mediation which wonder about the economic and practical realities of the government’s model for mediation as the solution. David Jockelson of Miles and Partners took the time to contact me to share his views. He gave an interview on BBC News 24 programme recently, welcoming the general principle of mediation, collaborative law ADR etc but saying that this announcement was unexpected and premature in the light of the ongoing Family Justice Review. He was concerned that it was isolated from the wider reforms that might in fact make some progress in improving family proceedings and was in short an ill thought out, political, headline grabbing act. He also made the point that he had been e-mailed that morning by a chair of a mediation service saying they had not got enough mediators to deal with current cases let alone a flood of new ones starting in six weeks time.

David has also sent me a copy of his excellent Submissions to the FJR panel – in which he makes some important observations, most notably for me identifying the significance of a system that is sufficiently fair and meticulous to enable parents to accept in many cases even the most devastating of decisions as justified and fair.

Thank you David.

Transcript of the interview:

I welcome the idea that there will be more mediation, conciliation and alternative dispute resolution but this is a very crude announcement that has come as a surprise. It has been jumped on us. It is not a part of the major change to the system which we hope will come out of the major Family Justice Review which now underway. There does need to be a culture change with lawyers and with the public as to what should be expected. But this is premature, isolated and it won’t be enough of itself. It is a headline grabbing, political announcement. It is true that some lawyers do shoot from the hip. Some lawyers do jump when their clients say be aggressive and some of the most famous firms who pay lip service to these ideals will sometimes actually issue applications while you are still in negotiations or almost before negotiations have started. There are ways of avoiding the damage caused in cases but it doesn’t mean that you necessarily cut out lawyers completely. There is a whole new ethos of Collaborative Law which involves mediation, sometimes therapists and counsellors and is very creative. That needs much more emotional intelligence and it can’t just be a constriction on going to court. It is a completely different issue from the one that you ran together with it in your last report which is the withdrawal of legal aid for actually going to court. Legal aid clients have always had to try mediation before they are allowed to go to court. Now everyone is going to have to try mediation or least approach it before going to court. But another separate issue altogether, the Green Paper, means that legally aided client will not actually be able to go to court. They will not be able to have their issues sorted out. Which means that the children of those families will not be protected by the court. They will be left to drift or their parents will be arguing things out in court themselves. How much more destructive is that? In some senses I welcome it but it is a crude isolated, headline grabbing, political announcement. The changes will come in six weeks time. There is not time to prepare for this. There are not even enough mediators. I got an e-mail from the chair of a local mediation service who said “I cannot get enough mediators to deal with the present load so where am I going to find enough mediators to deal with these compulsory ones?“. I am sorry but this is not well thought out.

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2 thoughts on “More Mmmmmediation”

David’s response to the FJR panel is excellent and he puts it so much better than I could have done.

In nearly 16 years doing family work (surely that can’t be right – I can’t that old?!?) I have still not really been able to get used to a lot of the inefficient waiting around. (Overlisting, a “floating list” and even worse being “at risk” are apparently done “for our convenience…!)

Nor have I been able to get used to being rushed into Court to plead (literally) for more time to allow a negotiated agreement to be reached.

In care proceedings in particular, to have to go into Court to explain why we need more time, what the concerns are and effectively to air the full issues can be immensely destructive to the negotiation process.

Equally I am often shocked that we don’t see more violent, abusive or excessive response from parents or in some cases from teenage children. They are of course facing probably the worst time of their lives. They are often ill-equipped to deal with it. Because of their difficulties and experiences with authority, they might be expected to not respect the authority of the Court to make very difficult and often painful decisions about them and their children. Yet they do.

I agree that this is largely because they are treated with respect, courtesy and often a great deal of kindness by many of the professionals and judiciary they deal with.

Targets, particularly in terms of time spent dealing with a case will not, in my view, always assist. I have certainly seen cases which at the outset looked like “no-brainer” decisions. How can these parents look after this baby? They might have severe mental illness. They might have severe drug abuse issues. They might never have been able to deal with these issues before. Surely the child should be taken away? Yet there are cases where a lengthy process of assessment, treatment and change can result in the child being looked after safely and well by its parent(s) or within its birth family. This may very well not be achieved within 40 weeks but the result is undoubtedly the best one.

Equally, there are cases where the concerns cannot be overcome. But a parent who has been given every reasonable opportunity, been listened to and treated fairly, often can face the outcome in such a way as to support their child to move on. We rarely hear of disastrous “goodbye contacts” and often hear of heart-warming messages given to children by their parents which can only help them on their journey.

If parents (or indeed social work professionals) feel that care proceedings are effectively “tick box form” routines, we are only going to see more dissatisfaction and distress.

There are things that need to be changed – for example, having to wait many months for contested hearing dates due to the over-work of our family Courts. In my view, though, the required change is not with the overall ethos of our system.

I can only hope that the Government’s decision making process about reform can be genuinely and properly informed by some increased understanding of what goes on “at the coal face.”

[…] in our newspapers. This sort of stuff is damaging public confidence in the justice system (see this post for some views from David Jockelson on how well we are doing on that front at present), and it is […]